Justice Committee on Feb. 16th, 2011

[Serge Ménard, Bloc, Marc-Aurèle-Fortin, QC]

I had anticipated that I would be presented with that argument. However, I do not believe that it makes very much sense and I wish to appeal from the ruling of the Chair. We can in fact clearly be of the view that we must eliminate...

[The Chair, Conservative, Ed Fast]

Mr. Ménard, the ruling isn't debatable, but it can be challenged.

Mr. Murphy, do you want to challenge the ruling of the chair?

[Brian Murphy, Liberal, Moncton—Riverview—Dieppe, NB]

I do. I want to make a motion to challenge.

This act is called “An Act to amend the Criminal Code (sexual offences against children)” and the “Protecting Children from Sexual Predators Act”. There's nothing there that speaks of mandatory minimum sentences.

Therefore, I challenge the ruling. I gather it's not debatable either.

[The Chair, Conservative, Ed Fast]

It's not debatable. The question is whether the ruling of the chair shall be sustained.

There's no debate.

[The Clerk of the Committee, Ms. Miriam Burke]

Shall the chair's ruling be sustained?

[Bob Dechert, Conservative, Mississauga—Erindale, ON]

No--I mean, yes. It's sustained.

[Some hon. members]

Oh, oh!

[Bob Dechert, Conservative, Mississauga—Erindale, ON]

I apologize. Yes, it should be sustained. It's correct.

(Ruling of the chair overturned: nays 6; yeas 5)

[The Chair, Conservative, Ed Fast]

The ruling of the chair is not sustained; therefore, we will continue debate on the amendment. We have Ms. Jennings on the list.

[Marlene Jennings, Liberal, Notre-Dame-de-Grâce—Lachine, QC]

Thank you.

I'm pleased to be able to speak to this amendment. I wish to announce that the Liberals will not be supporting this amendment. We do believe that it was and is in fact within the scope of the bill; however, Liberals in previous governments established minimum mandatory sentences for these sexual offences that we find currently in the Criminal Code, sentences that the current government wishes to raise.

We are in favour of minimum mandatory penalties in very targeted areas. One of those areas, as everyone knows, is firearms-related offences, for which we brought in minimum mandatory penalties. We're also in favour of minimum mandatory sentences for sexual offences committed against children. The proof is that the existing minimum mandatory penalties for those types of offences, which the Conservative government now wishes to increase, were in fact brought in by Liberal governments, so we will not be supporting this amendment of the Bloc.

[The Chair, Conservative, Ed Fast]

Thank you.

We'll move on to Mr. Rathgeber.

[Brent Rathgeber, Conservative, Edmonton—St. Albert, AB]

Thank you, Mr. Chair.

Very briefly, I too will be voting against this proposed amendment.

With all due respect to Mr. Ménard and his nearly half century in criminal law, his reasons for introducing this amendment are counterintuitive to what the amendment says. He talks about the need for mandatory minimums and how he is not doctrinaire in his opposition to mandatory minimums, but then he introduces an amendment which essentially allows a court to ignore mandatory minimum sentences, if in the opinion of that court there are compelling circumstances to do so.

I will be voting no.

[The Chair, Conservative, Ed Fast]

Thank you.

We'll move on to Mr. Comartin.

[Joe Comartin, NDP, Windsor—Tecumseh, ON]

I'll be supporting the amendment. I actually have a private member's bill on the same issue, which I derive from the experience in England, which has exactly this type of provision. I think it's a general provision in their whole criminal justice legislation that, given exceptional circumstances, the judiciary has an ongoing judicial discretion even when there are specific penalties, whether those penalties be minimum or maximum.

I hear the argument about its being counterintuitive. In fact, it is the practice in England. It has been for at least a decade now.

Mr. Chair, I do have one question, just so that we're very clear on this. I know Mr. Ménard sees this as applying only to section 151. I'm wondering if the officials agree with that, or whether there is any way this can be interpreted as applying to any other sections in this bill.

[Carole Morency]

I have two comments to make.

First, the amendment is being proposed simply to section 151, so the obvious interpretation is that the discretionary clause, if it were enacted, would only apply to section 151.

My second comment, though, would perhaps speak to some of the background offered to the motion. Just to clarify, section 151 does require what we call a specific intent offence--that is, it requires the crown to prove that the accused touched a young person under that age for a sexual purpose. It doesn't apply in the situation described as a general accidental touching. Very much with this offence, it does clearly apply to a specific touching for a sexual purpose of a person under the specified age.

[Joe Comartin, NDP, Windsor—Tecumseh, ON]

I have a follow-up question. If I'm reading this correctly, the five-year near age defence applies to this section, so if a person up to age 21 touches directly or indirectly, etc., somebody who is 16 or over, that would not be an offence.

[Carole Morency]

That's correct. Bill C-54 does not change anything in the Criminal Code as it applies right now to what we refer to as the age of consent and a close-in-age exception, so it does apply. If a person over the age of consent engages in consensual sexual activity, it is not an offence. If the person is below the age of consent--14 or 15 years old--and the other person is less than five years older, it is not an offence if it is consensual.

[The Chair, Conservative, Ed Fast]

Mr. Murphy, you're on the list.

[Brian Murphy, Liberal, Moncton—Riverview—Dieppe, NB]

I don't think so.

[The Chair, Conservative, Ed Fast]

Go ahead, Mr. Dechert.

[Bob Dechert, Conservative, Mississauga—Erindale, ON]

I will also be voting against the amendment. I acknowledge that the previous Liberal government did impose mandatory minimums for these sexual offences. I agreed with that amendment at that time and I agree with the government's position that those mandatory minimums need to be increased.

The government believes that every person who for a sexual purpose touches directly or indirectly, with a part of the body or with an object, any part of the body of a person under the age of 16 should serve some time in jail. On that basis I will not support Mr. Ménard's amendment. It seems to me that he is essentially trying to remove a minimum that really flies directly in the face of not only what the government is trying to do here but also what the previous government did with respect to these provisions.

[The Chair, Conservative, Ed Fast]

Thank you.

Mr. Woodworth is next.

[Stephen Woodworth, Conservative, Kitchener Centre, ON]

Thank you very much.

I'll begin by saying that I'm very heartened and hopeful as a result of the comments that Mr. Ménard has made and what appears to be a sincere expression of the fact that his heart has been touched by the pleas of the victims we so often hear at this committee who support mandatory minimum penalties, and at least that his heart has been touched by the pleas of victims of child sexual assault.

I am very grateful to him if he has now seen his way clear, as he says he does, to support a mandatory minimum penalty and even to use his considerable powers of persuasion to convince the rest of his caucus to support him. However, I believe that his pen has betrayed his heart, and that somewhere between his resolve to accept mandatory minimum penalties to protect the victims of child sexual assault and the drafting of this clause, his pen lost its way, because this clause would not be a mandatory minimum penalty. A mandatory minimum penalty that is not mandatory is not a mandatory minimum penalty. I wish I could say that in French to be sure that the translation is clear.

I was happy that Mr. Comartin clarified for Mr. Ménard that the close-in-age exception will protect perpetrators that Mr. Ménard was concerned about. As well, I was happy that the Department of Justice official clarified for Mr. Ménard that in fact this is a specific intent section, meaning that an accidental touching does not need any protection from a mandatory minimum penalty. There will be no conviction.

I hope that Mr. Ménard will vote with his heart and accept the clause as a real and true mandatory minimum penalty. I have a great admiration for les gens du Québec and their intelligence. I'm certain that the people of Quebec will know that a mandatory minimum penalty that is not mandatory is not really a mandatory minimum penalty.

I respect their intelligence enough to see through that. I'm sure that Mr. Ménard will too.

Thank you.

[The Chair, Conservative, Ed Fast]

Thank you.

Is there anybody else?

We will call the question on amendment BQ-1.

(Amendment negatived nays, 8; yeas, 3)

The amendment fails.

We'll move now to clause 3 as unamended.

Mr. Lee, I understand you want to intervene.

[Derek Lee, Liberal, Scarborough—Rouge River, ON]

I have a question.

This particular dual amendment increases the mandatory minimum penalty under proposed paragraph 151(a) from 45 days to one year, and proposed paragraph 151(b) increases it upon summary conviction from 14 days to 90 days.

My question is to government officials. I'm bearing in mind that the Statistics Canada data we just got show that we have, over the last 10 years, some 7,000 convictions for sexual interference. Each of these convictions, in which the mandatory minimum would be used by the court, would send a person to a provincial institution, not a federal institution, by definition. Sentences of one year or 90 days are served provincially, not federally, so there's a full imposition of the cost of this on the provinces.

My question is this: has the department done a workup on what this might cost provincially? Second, has there been any consultation with provincial counterparts in relation to these costs before we go ahead and impose the measure on them?

If Ms. Morency or Mr. Villetorte can't answer that, perhaps Mr. Dechert can.